In the nine months since Merrick Garland took the helm at the Justice Department, the U.S. attorney general has issued a moratorium on federal executions and retracted the agency’s plans to pursue capital punishment in a dozen pending cases, including one in the Houston area, officials said.
These actions mark a significant policy shift, considering federal death row is home to less than four dozen prisoners.
Garland’s position on execution stands in contrast to his predecessor, William Barr, who backed an unusual spree of 13 expedited executions during President Donald Trump’s last six months, including six carried out between the election and inauguration of Joe Biden. Federal executions had been on pause for nearly 20 years before Trump reactivated the death chamber.
Garland announced on July 1 he would halt executions while he conducted a review of capital cases.
In a memo at the time, the AG said he would continue a protocol adopted in 2019 that called for reassessing lethal injections, including “among other things, the risk of pain and suffering associated with the use of pentobarbital.” Garland also said he would review changes made to Justice Department regulations in November 2020, expanding the permissible methods of execution beyond lethal injection and allowing state facilities and personnel to help in federal executions. Finally, he said he planned reconsider changes to death penalty case management, specifically changes his predecessor made to internal guidelines in December 2020 and January 2021 that expedited the pace of executions.
“Serious concerns have been raised about the continued use of the death penalty across the country, including arbitrariness in its application, disparate impact on people of color and the troubling number of exonerations in capital and other serious cases,” Garland said. “Those weighty concerns deserve careful study and evaluation by lawmakers. In the meantime, the department must take care to scrupulously maintain our commitment to fairness and humane treatment in the administration of existing federal laws governing capital sentences.”
Democrats in the House and Senate wrote letters to Garland in August urging Garland to go further, suggesting he abolish the federal death penalty altogether.
Justice Department spokesperson Joshua Stueve said this month the agency has been following standard guidelines for withdrawing notices of intent to seek the death penalty. The department also declined to comment on whether these legal moves were part of a broader plan to reduce the number of capital prosecutions.
Seasoned veterans of the federal courts said they couldn’t say for sure if the retractions were a coordinated effort.
One of the withdrawals was made public in early December in Houston when Garland approved a plea deal for James Wayne Ham in the premeditated shooting and burning of his Coldspring postal carrier.
The case had been pending before U.S. District Judge Lynn N. Hughes for years. During that time, various attorneys general requested the death penalty, saying Ham premeditated and intentionally killed and burned Marie Eddie Youngblood and constituted a continuing and serious ongoing threat to others due to convictions for burglary, arson, use of deadly weapons, rape, physical assaults, and killing of various animals by arson.
Marjorie Meyers, the veteran federal public defender for the Southern District of Texas, said Biden and Garland have made it clear they intend to avoid federal death penalty cases, although the White House held its ground on pursuing it against the defendants in the 2019 mass shooting at an El Paso Walmart; the 2018 slayings at a Pittsburgh synagogue; Dylann Roof, in the 2015 murders of Black churchgoers in Charleston, S.C.; and the 2013 bombing deaths at the Boston Marathon.
But shortly after calling for a moratorium this summer, Garland withdrew the Justice Department’s plans to seek the death penalty against a man in Anchorage, Alaska, charged with robbing, fatally shooting and burning the bodies to two men in Wasilla in 2016 and against a man in Syracuse, N.Y., accused of robbing and killing two employees at a Chili’s restaurant in 2018.
Meyers said the lawyers had been working on resolving the Ham case, involving the rural postal delivery worker, for a long time, addressing a series of mental health issues. So it’s impossible to say if Garland pushed for the death penalty to be removed. The federal public defender said it’s difficult to read how coordinated Garland’s retractions of intent are in pending death penalty cases.
“It’s certainly significant that they’ve done 12 of them and don’t seem to be seeking (it in others),” she said. “It does seem to be a change.”
“I hope it’s a big deal,” Meyers added.
Former U.S. Attorney Ryan K. Patrick, who had firsthand experience with the decision-making process during the Trump administration, said he thought, given the number of cases where the death penalty has been withdrawn, there could very well be a coordinated effort by Garland to go through pending prosecutions.
“I don’t think it’s beyond the realm of possibility that Garland or someone in his office said, ‘Let’s review all the cases.’ … It would not surprise me at all, and it would be in his prerogative to review those and to send the recommendations down to the U.S. attorney,” said Patrick, who is now in private practice.
Patrick said reviews of cases eligible for the death penalty “came in waves” while he was in the Justice Department’s top spot in the Southern District of Texas. Many of these reviews came out of the McAllen office, where drivers are being prosecuted in deaths of immigrants for crashing or rolling over loaded vehicles while fleeing from Border Patrol agents, he said. He declined to seek death in “rollover” cases at the border, he recalled.
During Patrick’s tenure, any “death penalty eligible” case had a memo that circulated through the office from the local prosecutors to the criminal unit chief and through the entire supervisory chain of decision-makers who signed off of their rationale. The memo ultimately went to the area’s U.S. attorney, who made a recommendation to the attorney general for life in prison or the death penalty.
The memo contained answers to all the questions the jury would want answered, he said: the person’s criminal history, whether the crime was premeditated in furtherance of another felony and whether the person was considered a future danger to society who was likely to reoffend. There is a statutory time limit for how long prosecutors have to make that decision, to give defendants enough time to consult with appropriate counsel. In Patrick’s experience, the decisions usually happened fairly quickly, he said.
“It happens very early in process,” Patrick said. “In a lot of the cases, (the decision is) pretty obvious.”
Patrick said he didn’t have a lot of instances where his department seriously considered execution, but he recalled at least once he thought the death penalty was appropriate and shared that opinion with the attorney general. But, he said, “ultimately it’s the attorney general’s decision.”
Source: houstonchronicle.com, Gabrielle Banks, December 27, 2021
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
